COMMONS AMENDMENTS (Hansard, 22 July 1988)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 198.

§ Lord Elwyn-Jones
My Lords, this amendment relates to Clause 138 which requires courts to give reasons for granting bail to defendants charged with murder, attempted murder, manslaughter, rape or attempted rape when the prosecution opposes bail.
Courts are now required to give reasons for refusing bail. I submit that there should be a general presumption against depriving people of their liberty. A requirement to give reasons for overriding this presumption is therefore justified. But if the same logic is applied to requiring courts to give reasons before granting bail, I submit that this turns on its head the presumption that defendants should be given bail unless there is a good reason to the contrary. The fear we have is that there is a danger that the message conveyed by Amendment No. 198, by requiring courts to give reasons if they grant bail, could lead to bail being refused in cases where it is now quite properly granted. It is by reason of that anxiety that I speak against the amendment.

§ Lord Monson
I have a partial sympathy with the noble and learned Lord, Lord Elwyn-Jones, in his objections to the Commons amendment. I am sure the Government are absolutely right to include murder and attempted murder within the amendment. But as judges never cease pointing out, to the great annoyance of the tabloid press, there are degrees of rape and attempted rape. I suggest that there are also degrees of manslaughter.
It would be unfortunate if the Commons amendment led to those accused, although not of course convicted, of the lesser degrees of rape and attempted rape—for example where a divorced husband attempts to climb into bed with his exwife—and the lesser degrees of manslaughter—in other words manslaughter resulting from human carelessness rather than human aggression—being remanded in custody more often than would be the 1663 case if the Commons amendment had not been introduced.

§ Lord Hailsham of Saint Marylebone
My Lords, I have always had a long standing disagreement with the noble and learned Lord, Lord Elwyn-Jones, on the subject of bail. There are points of agreement between us and points of disagreement. I believe that this saga started in my first term as Lord Chancellor, when I made a speech to the Gloucester magistrates. I should not like anyone to think that in the ordinary course of events I do not believe that the presumption should be in favour of bail. I have said that the presumption should be in favour of it on many occasions. However, I have always thought that there are certain cases where the Bail Act goes too far. The noble and learned Lord will remember that from our earlier exchanges.
I have always thought—and to some extent the Bail Act gives ground for believing that I was correct— that there are certain offences which are so serious that bail should ordinarily be refused. When I first went to the Bar, bail for murder was always refused. In those days, it was perceived wrongly that the real object of bail was to stop a man jumping bail and running away. However, the real object of hail in 19 cases out of 20 nowadays is to stop him offending while he is on bail.
I have always thought that there are certain offences for which the granting of bail ought to be justified simply on the grounds of the seriousness of the offence. The one exception to that is when the evidence for the prosecution, although adequate to deserve committal, is rather weak. In such a case, to deprive a man of liberty when he is untried is going too far, even in the case of a serious offence. Of the offences which require justification before bail is granted, murder and rape—and, I suppose, attempt to commit murder and rape if they are sufficiently explicit—are among those cases. On the whole, I accept the Commons amendment and I do not accept the position of the noble and learned Lord. On this occasion, I hack the Commons against the Bill as it stands.

§ Lord Houghton of Sowerby
My Lords, when changes of this kind are proposed, I wish to know the motive. Is the amendment intended to satisfy public curiosity or interest? Is it designed to make the granting of bail more difficult or less difficult in certain cases? What is the motivation?
In many cases, it is difficult to give reasons why bail has been granted. A court forms an impression of a person and, in all the circumstances, comes to the conclusion that bail should be granted. If reasons must be given, they may include such matters as a wife who is going to have a baby; an illness, or that, on general grounds, it is suitable to grant bail pending trial. Such reasons may sound weak. When bail is granted, we ought to be satisfied that the court was of the opinion that it should be granted. That ought to be enough. I know that people say, "Fancy letting that man out on bail when he did that dreadful thing". There is a tendency to convict such people beforehand. However, I do not see the point of it.
I support the amendment of my noble and learned friend. Late as the hour is, I believe that this matter is important, and I am willing to join in a Division on 1664 the matter if my noble and learned friend feels moved in that way. However, he will have to give his reasons.

Earl Ferrers
My Lords, I hope that the noble Lord, Lord Houghton of Sowerby, will not encourage his noble and learned friend to take the matter to a Division. Amendment No. 198 is important. It would be a pity for the noble and learned Lord to seek to remove it.
This amendment deals with the grant of bail. Bail decisions are among the most difficult decisions which the courts have to take. Amendment No. 198 implies no criticism of the courts' decisions. It is intended to deal with the acutely difficult matter of bail in very serious cases.
The amendment is concerned with the very few most serious offences—murder and attempted murder, manslaughter, rape and attempted rape. It occasionally happens—very rarely—that a person who is charged with such an offence commits another extremely serious offence while on bail awaiting trial. Although this happens rarely the consequences are severe. First, a very serious offence is committed which might—I put it no higher than that—have been prevented. Secondly, and more certainly, public confidence in the hail system is shaken to a quite disproportionate degree.
We do not dispute that a person who is accused of such an offence may qualify for bail. He is certainly entitled to full and proper consideration by the court. Indeed, the prosecution may have no objection to bail. In the case of a domestic murder, for example, the risk of re-offending may be minimal. But prosecution objections to bail are not made lightly. The court must give them the weight they deserve. Amendment No. 198 requires the court to give its reasons when it rejects prosecution objections to bail in those few most serious cases. A requirement to state reasons will help to focus the arguments for and against bail, and it may help to reassure the public that a court will grant bail in such a case only when it has fully considered all relevant matters, including the views expressed by the prosecution.
I think that it is desirable to retain this provision and I hope that the noble and learned Lord will not press his opposition to the amendment.

§ Lord Elwyn-Jones
My Lords, I am not entirely surprised by that response. I think a dangerous trend is being created by the amendment. The granting of bail in appropriate cases is a matter of very great importance. Our prisons are choked with prisoners on remand in custody and the courts ought to be encouraged to grant bail as frequently as public safety justifies.
I believe that this amendment creates a precedent of courts being required to give reasons for granting bail. It is a topsy-turvey situation that is proposed. I am very unhappy about it. Were it not for this late hour on a Friday I might submit to the blandishments of my noble friend and divide the House upon it. I think it is a mistake and a very regrettable mistake indeed. But in view of the lateness of the hour and all things considered I shall not pursue my opposition to the amendment.